STRESS, PRECARIOUS EMPLOYMENT AND WORKERS COMPENSATION: ANALYSIS OF CASELAW FROM QUBEC

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STRESS, PRECARIOUS EMPLOYMENT AND WORKERS
COMPENSATION ANALYSIS OF CASE-LAW FROM QUÉBEC

• Katherine Lippel
• CRC in Occupational Health and Safety Law
• University of Ottawa
• APA Work, Stress and Health 2008

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Structure of presentation

• Legal framework for recognition of stress claims
  in Québec.
• Precarious employment as a cause of compensable
  illness

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Methodology 1

• Data bank including 357 appeal judgments
  rendered by the Commission des lésions
  professionnelles (C.L.P.) between 04/1998 -
  09/2002.
• Acute and chronic stress claims having given rise
  to mental health problems.
• 100 of judgments rendered for that period.
• Databank using Filemaker software cases in
  databank analysed with regard to 452 fields.

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Methodology 2

• Selective analysis of case law rendered between
  2003-2007 with regard to claims for mental health
  problems filed by workers
• in precarious employment relationships
• On call, casual, part time, temporary employment
  agency
• in organisations in the process of
  restructuring, including mergers, downsizing etc.
• Total number of cases analysed from 2003-2007
• 53 additional decisions

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Access to workers compensation benefits for
psychological injury attributable to work-related
stress in Québec
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Quebec compensation case law recognizes that
mental health can be compromised

• By workplace stressors
• Acute stress single, significant events
• Armed robbery
• Chronic stress a series of events whose
  cumulative effect has undermined the mental
  health of the worker

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Claims for acute and chronic stress 1996-2005
CSST data
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Accepted Claims for acute and chronic stress
1996-2005 CSST data
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Success rate in appeal(1998-2002)

• Psychological harassment 29.6
• Discriminatory harassment 52.2
• Other sources of stress 52.6.

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Employment injury

• Industrial accident
• Occupational disease

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Industrial accident s. 2 (AIAOD)

• a sudden and unforeseen event, attributable to
  any cause, which happens to a person, arising out
  of or in the course of his work and resulting in
  an employment injury to him

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Vast majority of the case law CLP/CALP

• the accumulation of events arising out of or in
  the course of employment, which, considered
  individually may seem banal, can nonetheless, by
  their cumulative effect, become significant and
  meet the legislative requirement for a sudden and
  unforeseen event.

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Chronic stress as work accident

• Necessary to demonstrate that the stressors,
  individually or cumulatively, go beyond the
  normal workplace stressors to which workers are
  exposed in the modern workplace.

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Occupational disease

• means a disease contracted out of or in the
  course of work and characteristic of that work or
  directly related to the risks peculiar to that
  work

• No case has found that mental health problems are
  characteristic of work, but they can be related
  to the risks peculiar to that work.

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Mental Health problems accepted as Occupational
diseases (appeal)
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Basis of acceptance 1998-2002(appeal decisions)

• 91 of accepted cases were accepted as illnesses
  attributable to work accidents 9 were accepted
  as occupational diseases.

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Precarious employment as a cause of compensable
illness accepted claims
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Part-time workers marginalized

• Ostracism of worker who tried to defend the
  rights of part-time workers in his union...union
  and management all respond with hostility
• Series of threats and reprisals constitute a work
  accident.

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Sub-contracting and suicide

• Subcontractor for Canada Post, working harder and
  harder in difficult conditions to answer
  increasing demand with no increase in resources.
  Diagnosed with anxiety disorder, he is forced to
  take time off. His position is abolished, and
  hes asked to come in and train his replacement
  from Canada Post. He commits suicide. Estates
  claim is accepted.

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In 1995 the Canadian government cut 40,000 jobs
in the federal public sector

• Tasks
• Increased workload
• Conflicting priorities
• Computerization of case management without proper
  training of personnel

• Environment
• Colleagues and supervisors all under stress
• Work environment more volatile
• Clientele more aggressive because of poor service

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Restructuring abnormal working conditions
understaffing

• Veterinarian for public food inspection agency.
• Colleague leaves and is not replaced, claimant
  assumes his workload as well as her own.
• Worker diagnosed with major depression.
• Claim accepted in appeal as an occupational
  disease.

• Despite the fact that she did not work more
  hours, the increased responsibility and workload
  are risks that led to her illness.

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Mergers in the health sector accepted claims

• Québec healthcare sector was considerably
  restructured leading to a shortage of nursing
  personnel and continuous changes in personnel
  (overdose of adaptation)
• Transfers (without much training) 7 services in
  6 years
• Mergers of departments without care for impact on
  relationships and services
• Conflicts between groups of workers under
  competing supervisors

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Work intensification (Private sector)abnormal
when requirements impossible

• change of staff, new technology, suppression of
  positions and change in workload are all usual
  working conditions, but...

• It is not normal when a series of such conditions
  leads to illness of a retail sector worker whose
  workload increased to the point where she no
  longer took breaks and she still couldnt get her
  work done.

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Precarious employment as a cause of compensable
illness refused claims
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Stress of being on call a normal working
condition

• Trucker working for a temp agency, on call,
  worked 45-55 hours per week, always called at the
  last minute
• Stated he couldnt refuse a call or he wouldnt
  be called again
• Variability of schedule leading to sleep
  disruption and somatic disorders does not depart
  from normal working conditions.

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Precarious employment...a normal condition of
work

• Contract employees in competition with each other
  for access to scarce permanent positions are not
  subjected to unusual working conditions.
• The precarious status of employees affected
  their stress levels and caused insecurity.
  Precarious status is neither fortuitous nor
  infrequent in the labour market. ...compensation
  denied.

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Conclusions

• As precariousness, work intensification and
  non-standard employment become more and more
  common, they are perceived to be normal.
• Claims for illness that results from these
  conditions may thus be refused because not
  attributable to unusual conditions...

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Conclusions...2

• Some cases recognize precarious employment,
  restructuring, work intensification and poorly
  planned mergers as risks that may lead to
  occupational disease...a new trend?
• Implications for OHS obligations of employers...